of an ejectment is good (t). Where the premises consisted of a mansion, and four small houses in a yard, surrounded by a wall, through which was a door to them, forming the only means of access, in one of which small houses resided a man, who was permitted to live there merely to take care of them and the mansion-house, the rest of the messuages being vacant, the court refused a motion to make service on him good, and recommended the plaintiff to affix a declaration on the empty houses, and then to move that it should be deemed good service (u). The plaintiff in an ejectment on a vacant possession should, in general, be more strict in his proceedings than in a contested possession (x). СНАР. 1. SECT. 2. Entry, Lease, Ouster, &c.] In order to maintain ejectment Entry, Lease, on a vacant possession (y), an actual entry must first be made Ouster, &c. upon some part of the premises in question. This must be By whom. done either by the lessor of the plaintiff himself, or by some person authorized by him for that purpose by a letter of attorney (). A subsequent authority, by a letter of attorney, would, it seems, suffice (a). When the lessor, or his agent authorized by power of at- How. torney, goes for the purpose of making the entry, he should be accompanied by two friends; and, having made the entry upon the premises, let him there execute a lease of them (previously prepared) to one of his friends, and put him immediately in possession; the other friend is then to enter upon the premises, and thrust the lessee out; whereupon, this second lessee, the ejector, is immediately served with a declaration in ejectment, (also previously prepared), in which he is made defendant, and the other friend plaintiff. All this should be done before the first day of the term; otherwise, you cannot move for judgment during that term (b). It may be necessary to mention, that an attorney cannot be lessee in this case (c). If the premises in question be a house merely, and the What a suffidoor be locked, in such a case, getting upon the threshold of cient Entry. the door, and putting his finger into the key-hole, will be a sufficient entry upon the part of the lessor or his attorney, if none better can be made without force. Where there was no key-hole, laying hold of an iron bar attached to the door was held sufficient (d). Judgment.] In this action of ejectment upon a vacant pos- Judgment. session, no person claiming title can be let in to defend, but (f. Gulliver v. Smith, 2 Ld. Ken. 511. (u) 1 Tidd's Prac. 443. See the above cases collected in Harr. L. & T. 827. (1) See Anen. 2 Chit. Rep. 188. In that case, the plaintiff, having obtained judgment, neglected to take away the rule until after two days after the term in which the judgment was obtained; and the court refused to assist him in the next term. () As to what is, see ante. 770. (2) See form of letter of attorney, Chit. Forms. 396; and of affidavit of execution of, Id. VOL. II. (a) Sec Co. Lit. 245. a., 258. a.: Fitchet v. Adams, 2 Str. 1128, where it was held, that a subsequent assent before the day of the demise was sufficient without deed or writing to take advantage of a condition. (Maclean v. Dunn, 1 Moo. & P. 770; 4 Bing. 722, S. C.) (b) See form of lease, Chit. Forms, 396; of declaration and notice to appear, Id. 397. (c) R. M., 1654, s. 1: Hawkins v. Magnell, 2 Doug. 466: Vol. I. p. 48. (d) Doe Frith v. Roe, 2 Dowl. 451. G BOOK HII. he that can first seal a lease upon the premises must obtain possession (e); and persons having any claim or title to them must have recourse to their action. Consequently, the lessor of the plaintiff may immediately proceed to judgment against the defendant. For this purpose, make an affidavit of the entry, lease, and ouster, and of the service of the declaration and notice (f); annex to it the letter of the attorney, the lease, and a copy of the declaration and notice; and let the affidavit be sworn before a judge or a commissioner. Indorse it "to move for judgment against the defendant," and get it signed by counsel; draw up the rule, and proceed to sign judgment as directed ante, 722; then sue out execution (g). If the lease were executed by power of attorney, there must also be an affidavit of the execution of such power (h). In the Common Pleas the affidavit of the entry, lease, and ouster, &c., is unnecessary; and in that court the practice is for the plaintiff, at first, to give a rule to plead, as in ordinary cases, and at the expiration of the time for pleading, if there be no appearance and plea, he may sign judg ment. See stat. 11 G. 2, c. 19, s. 16, & 57 G. 3, c. 52, which give a power to two justices of peace, when premises are deserted by a tenant, and no sufficient distress is to be found upon them to answer the arrears of rent, to give possession of them to the landlord (i). 1. Where there is a sufficient Distress upon SECT. 3. Proceedings in Ejectment by Landlord, for Forfeiture by Nonpayment of Rent (k). 1. Where there is a sufficient Distress upon the Pre- 2. Where there is not a sufficient Statute relating to, 774. Declaration, and Service of, Judgment against the Casual Appearance and subsequent Tender of Rent - Bill in 1. Where there is a sufficient Distress upon the Premises. If the tenant forfeit his term by the non-payment of rent, the Premises. the landlord may proceed to recover possession of the pre (e) Bull. N. P. 95. (f) See form, Chit Forms, 397. (h) See the form, Chit. Forms, 396; see (i) See Ex p. Pilton, 1 B. & Ald. 369: Basten v. Carew, 5 D. & R. 558; 3 B. & C. 612, 641, S. C.: Lister v. Brown, 3 D. & R. 501; 1 C. & P. 121, S. C. (k) It is unnecessary to notice particularly the cases in which a right of re-entry is reserved to the landlord, where the tenant is guilty of a breach of covenant, by not repairing, &c. In such cases, an actual entry is not necessary to enable the landlord to take advantage of the forfeiture. (Oates v. Brydon, 3 Burr. 1897). The proceedings are the same as in ordinary cases. SECT. 3. mises by ejectment (1). The mode of proceeding, however, CHAP. I. varies, according as there is or is not a sufficient distress upon the premises to answer the amount of the rent due: if there be not a sufficient distress upon the premises, the proceeding may be under the stat. 4 G. 2, c. 28, s. 2; if there be a sufficient distress, the proceeding must be at common law (m). The proceeding at common law shall be first considered. Law. Before you commence the action, and, indeed, before the Demand of forfeiture can be incurred, a demand must have been made of the Rent. when, where, the rent (n); unless there be an express stipulation or agree- and how made ment between the parties dispensing with such demand (o). at Common There is a great strictness required in this respect; for the common law does not favour forfeitures. The demand must be made, in fact, although no person be present on the part of the tenant to answer (p). The landlord must go in person, or execute a formal power to another, who must go in person (7). If the lease do not specify where the rent is to be paid, the demand must be made upon the land, and at the most notorious place of it; and, therefore, if there be a dwelling-house upon the land, the demand must be made at the front door of it: but it is not necessary to enter the house. Yet if the tenant were to meet the lessor on or off the land, at any time on the last day given him to pay the rent, and then tender him the rent, it would be sufficient to save the forfeiture (r). If the lease, however, specify a place for the payment of the rent, the demand must be made at that and no other (s). Also, the demand must be made precisely on the last day on which it can be paid to save the forfeiture; as, where the proviso in the lease is, that, if the rent be behind and unpaid for the space of twenty days, the lessor may reenter, the demand must be made on the twentieth day, at some convenient time before sunset (t); or according to a dictum of Lord Tenterden, C. J., at sunset (u); a demand at one o'clock in the day will not do (u). And, lastly, the demand must be made of the precise sum due, and not a penny more or less (r). Where the rent was payable quarterly, and more than one quarter was due, it was held, that only a quarter's rent should have been demanded (y). If the rent be not paid when thus demanded, the tenant forfeits his term, and the landlord may re-enter for the forfeiture; that is, he may bring an ejectment to recover the possession of the premises; for an actual entry is not necessary in this case (z). The proceedings in this ejectment are the same as in ordi- Other Pronary cases, as described in the preceding two sections, accord- ceedings. ing as the tenant is in possession, or the possession is vacant. He may also, as we have seen ante, 731, 73, obtain possession without an ejectment, if the premises be vacant, &c. (m) Doe Forster v. Wandlass, 7 T. R. 117: Doe Chandless v. Robson, 2 C. & P. 245. (n) Bro. Abr., Demaunde, pl. 19. (0) Doe Harris v. Masters, 2 B. & C. 490; 4 D. & R. 45, S. C.: Goodright v. Cator, 2 Doug. 486. (p) Kidwelly v. Brand, Plowd. 70 a, b. (q) Doe West v. Davis, 7 East, 363. (r) Co. Lit. 201. b., 202. a.: Doe Forster v. Wandlass, 7 T. R. 117: Duppa v. Mayo, 1 Saund. 287. (8) Co. Lit. 202. a. (t) Co. Lit. 202. a., and note 3: Hill v. Grange, Plowd. 172 b: Duppa v. Mayo, 1 Saund. 287. (u) Doe Wheeldon v. Paul, 3 C. & P. 613. (x) Fabian & Windsor's case, 1 Leon. 305: Fabian v. Winston, Cro. El 209: Doe Wheeldon v. Paul, 3 C. & P. 613. (y) Doe Wheeldon v. Paul, 3 C. & P. 613. (z) Anom., 1 Vent. 248: Little v. Heaton, 2 L. Raym. 750; 1 Salk. 259, S. C.: Clerke v. Pywell, 1 Saund. 319: Duppa v. Mayo, Id. 287. BOOK III. This mode of proceeding upon a forfeiture for non-payment of rent, when there is a sufficient distress upon the premises, Difficulties of is seldom, however, adopted in practice: first, on account of proceeding at the great nicety to be observed in the previous demand of the Common Law. rent; and secondly, because the tenant, by filing a bill in equity, may obtain an injunction, and stay the proceedings, upon payment of the rent in arrear. 2. Where there cient Distress upon the Premises. Statute as to. 2. Where there is not a sufficient Distress upon the Premises. Statute as to.] If a term be forfeited by the non-payment is not a suffi- of rent, and there be not a sufficient distress upon the premises (a), the proceedings in an ejectment by the landford for the recovery of the possession in such a case are regulated by stat. 4 G. 2, c. 28; by which it is enacted, that in all cases between landlord and tenant, as often as it shall happen that one half-year's rent shall be in arrear, and the landlord or lessor, to whom the same is due, hath right by law to reenter for the non-payment thereof, (i. e. where, by the express terms of the lease, a right of re-entry has been reserved (b)), such landlord or lessor shall and may, without any formal demand or re-entry, serve a declaration in ejectment for the recovery of the demised premises, and recover therein, provided no sufficient distress was to be found on the premises to countervail the arrears of rent; and unless the tenant pay the rent and costs within six calendar months, he is to be deprived of all relief at law or equity, and the tenancy is absolutely determined (s. 2). Although the lease expressly requires a lawful demand, no demand is necessary to proceed under this act; the service of the declaration is substituted for such demand (c). Search for Declaration, and Service of. f Search for Distress.] Before proceeding under this act you must make diligent search over the premises, after the expiration of the time limited for payment of the rent, to ascertain the insufficiency of the property there to answer distress, and you will have to prove such search at the trial (d). But if the tenant prevented the search, that would supersede the necessity for it(e). Declaration, and Service of The declaration is the same as in ordinary cases. The demise must be laid on a day when the forfeiture was complete, and on or after a day when it is certain there was not sufficient property to distrain upon(ƒ). If the possession be vacant, the notice is signed by the plaintiff's attorney, and directed to the tenant late in possession (g). If the tenant be in the occupation of the premises, the declaration and notice are served in the same manner as directed (a) Doe Forster v. Wandlass, 7 T. R. 117: Doe Chandless v. Robson, 2 C. & P. 245. (b) Woodf. L. & T. 2nd ed. 523: Chit. Col. Stat. 673, n. (k). (c) Doe Schofield v. Alexander, 2 M. & Sel. 525: Doe Lawrence v. Shawcross, 3 B. & C. 752; 5 D. & R. 711, S. C. (d) See Doe Forster v. Wandlass, 7 T. R. 117: Rees v. King, Forrest, Rep. 19. (e) Doe Chippendale v. Dyson, 1 M. & M. 77. (f) Doe v. Fuchau, 15 East, 286: Doe Lawrence v. Shawcross, 3 B. & C. 752; 5 D. & R. 711, S. C. (g) See form of declaration and notice where the premises are tenanted, Chit. Forms. 398; and of affidavit of service thereof, Id.; of declaration and notice upon a vacant possession, Id. 399; and of affidavit of service thereof, Id. ante, 736–743. But if " the same cannot be legally served (h), or no tenant be in actual possession of the premises, then the same may be affixed upon the door of any demised messuage; or in case such ejectment shall not be for the recovery of any messuage, then upon some notorious place of the lands, tenements, or hereditaments comprised in such declaration in ejectment, and such affixing shall be deemed legal service thereof; which service, or affixing such declaration, shall stand in the place and stead of a demand and re-entry”(i). The court must be well satisfied that there is no probability that the tenant can be personally served before they will deem such affixing to be legal service (k). СНАР. І. SECT. 3. Ejector. Judgment against casual Ejector.] If the tenant take no Judgment steps to have himself, made a party to the suit, the plaintiff against casual may then proceed to obtain judgment against the casual ejector, as in ordinary cases. In order to this-Let an affidarit (k) be made of the service or affixing of the declaration and notice, and also stating that " half-a-year's rent was due before the declaration was served, and that no sufficient distress was to be found on the demised premises, countervailing the arrears then due, and that the lessor or lessors had power to re-enter” (1). The affidavit must be positive as to there being no sufficient distress (m). Annex this affidavit to the declaration, move upon it for judgment against the casual ejector, draw up the rule, and sign judgment, as directed ante, 745, 746. Which judgment shall have the same effect, and the plaintiff may thereon sue out execution in the same manner, 66 as if the rent had been legally demanded, and a re-entry made" (n). and subse quent Pro Appearance and Subsequent Proceedings.] The appearance, Appearance, plea, and other proceedings to trial, &c., are the same as already mentioned in the first section. At the trial, however, ceedings. the plaintiff, in addition to what in other cases he would have to give in evidence, must prove "that half-a-year's rent was due before the declaration was served, and that no sufficient distress was to be found on the demised premises countervailing the arrears then due, and that the lessor had power to re-enter" (o). We have seen that, at the trial, the plaintiff, on proving the Mesne Promesne profits, may recover them as damages (p). fits. Equity, &c. Tender of Rent-Bill in Equity, &c.] If the tenant or his Tender of assigns shall, at any time before the trial (2), pay or tender Rent-Bill in to the landlord, his executors, &c., or pay into court, all the rent in arrear, together with costs, all further proceedings shall cease (r). The mortgagee of the term is an assignee within the act(s). The application may be to the court in (m) Doe v. Roe, 2 Dowl. 413. (n) 4 G. 2, c. 28, s. 2. (0) Id.: see Doe v. Lewis, 1 Burr. 614. (g) See Roe West v. Davis, 7 East, 63: (r) 4 G. 2, c. 28, s. 4. (s) Doe Whitfield v. Roe, 3 Taunt. 402; Ad. Eject. 214, S. C.: ante, 752. |